Why did the Supreme Court rule for Heyes?

The Left Coast tries to explain Cambie St. merchants complaints about the Canada Line construction with a simple analogy. Suppose there’s a mall, and its roof needed to be replaced. So the mall owner gets a contractor to do the job, and after consultation with the mall’s retailer tenants, everyone agrees to a certain plan for replacing the roof. But then — You saw this coming right? — the mall owner and the contractor switch up the plan to a cheaper but more disruptive method of replacing the roof. The mall turns into a construction zone, people steer clear of it, and the merchants lose business. The Left Coast concludes:

If you were a tenant of the mall, would you not expect the mall owner to offer some compensation? They promised one thing just before you signed a lease agreement and then you breached that agreement? That is essentially what happened to the Cambie Street merchants. And the courts have told the builders of the Canada Line to pony up for the loses that the small business owners have incurred. A simple and straightforward case of promising one thing and doing another.

There are, as there always are with analogies, lots of nits to pick. But I want to flag one point in particular. The Left Coast’s conclusion strongly implies that the Supreme Court ruled for Cambie merchant Susan Heyes because of the alleged “bait and switch” — that is, because the Canada Line builders and the province consulted Cambie St. stakeholders on the plan for a bored tunnel, but then, without any further consultation, switched the plan to a cut-and-cover tunnel.

But it’s false that this is why the court ruled for Heyes. The court considered this argument explicitly, and explicitly rejected it as grounds for ruling for Heyes. Heyes won her case on entirely different grounds. (Here’s the ruling, which Frances Bula’s been kind enough to host. Warning, it’s a big pdf. The money quote for this point is on p. 33, paragraph 111.)

Now, as it happens, I think there’s an even bigger poblem wth this mall analogy, but my day job calls so it’ll have to wait.